Ninth Circuit Finds that CA Conviction for Attempting to Communicate with a Child with Intent to Commit Lewd or Lascivious Acts Upon the Child is Overbroad and Divisible as a CIMT

The Ninth Circuit has determined that a California conviction for attempting to communicate with a child with intent to commit a lewd and lascivious upon the child is not categorically a crime involving moral turpitude because it includes the intent to commit certain enumerated offenses that are not morally turpitudinous (such as kidnapping). However, the court determined that the statute is divisible among the 15 enumerated offenses. The court then consulted the charging document, with charged the petitioner with intent to commit a violation of section 288 of the Penal Code. The document did not specify a subsection of section 288, and the Ninth Circuit has previously held that a violation of section 288(c)(1) is not a crime involving moral turpitude because it lacked a good-faith reasonable mistake of age defense. However, that concern is negated because section 288.3 of the Penal Code (the attempting to communicate statute) requires the person to know or reasonably know that the victim is a minor. Hence, that statute provides the good-faith reasonable mistake of age defense missing in section 288(c)(1) itself.

The full text of Syed v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/17-71727.pdf

Ninth Circuit Affirms that WA Conviction for Communication with Minor for Immoral Purposes is CIMT

The Ninth Circuit has reaffirmed that a Washington conviction for communication with a minor for immoral purposes is a crime involving moral turpitude, citing its prior decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) as binding precedent on the issue. The court also determined that it is bound by its own precedent to reject the argument that the phrase “crime involving moral turpitude” is unconstitutionally vague.

Judge Fletcher wrote a lengthy concurrence on why, absent the precedent relied on, the court should find that term is unconstitutionally vague.

The full text of Islas-Veloz v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/04/15-73120.pdf